The European Unitary Patent And Unified Patent Court System Update

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The European Parliament has today voted in favour of the proposed Regulation establishing a unitary patent right (UP) across 25 of the EU Member States (excluding Spain and Italy currently) using the enhanced cooperation procedure, along with associated language provisions and the establishment of a Unified Patent Court where the right will be litigated.  This follows the Council of Europe's announcement yesterday that it had reached agreement on a final draft of the Unitary Patent Regulation.
 

Earlier today, the AG of the CJEU issued an Opinion dismissing Spain and Italy's attempts to foil the use of the enhanced cooperation procedure to establish the UP. 

Business impact 

  • The AG's Opinion, if followed by the CJEU, would remove the barrier Spain and Italy attempted to raise to the unitary patent entering into force across the 25 member states which approved the use of the enhanced cooperation procedure to implement the measure.  Spain and Italy may well decide to join the rest of the EU, if the CJEU is not persuaded by their arguments and follows the AG's Opinion. 

  • The UP Regulation needs to be ratified to come into force (n.b.13 contracting states must ratify it (including the UK, France and Germany)).  It is understood that this process will commence in February 2013. 

  • Whilst a single pan-European patent right would then be available from 1 January 2014, the current system of centralised application for a bundle of national European patents (EPs) would still be available to potential patentees.

  • There would be no obligation to follow the UP route.  On application at the EPO, the applicant will be able to choose whether to have a UP or a bundle of EPs (or both – UP on UP contracting states (currently 25) and EP for non-contracting states (currently Spain and Italy) plus other non-EU but EPC states e.g. Switzerland and Turkey amongst others.  

  • Litigation of UPs and EPs will take place in the Unified Patent Court (from 1 January 2014 or whenever the UP Regulation comes into force) but for EPs there is a transitional period of 7 years during which revocation or infringement actions may still be initiated in national courts.  Holders of EPs granted or applied for in advance of the UPC/UP measures coming into force can also "opt out" of the UPC up to one month in advance of the expiry of the transitional period (unless proceedings have been commenced at the UPC already). The opt-out can be withdrawn at any time (as long as national proceedings have not been initiated). 

  • National patents (NPs) would still be available via national patent offices also and would continue to be litigation in national courts (not in the UPC). 

  • UPs can be filed in any language but if not filed in English, French or German they must be accompanied by a translation into one of these languages. 

  • The UP Regulation (still not published in full – draft Regulationhere with amendments unofficially released here) does not now require references to be made to the CJEU on substantive patent infringement law, say the legislators, as the controversial Articles 6-8 have been removed and replaced with a new Article 5a which provides for the law of infringement to be that national law applicable to the patent under Article 10 (that where the patentee has its principal place of business/residence if in EU - if outside it, the law of Germany as the country of the EPO's headquarters).

  • Concern has been expressed by stakeholders including European patent judges as to fundamental flaws in the Unified Patent Court agreement (latest draft available here) proposals. The process of ratification may lead to further opportunity to publicise these concerns. 
     

Council of Europe praises unitary patent proposal

Yesterday, despite continuing concern from industry, European patent judges and some member states (notably the UK and Poland) the Council of Europe went ahead and approved the latest draft of the Unitary Patent Regulation, heralding this piece of legislation as a break-through in pan-European cooperation.

The Cypriot Presidency announced: "We are all aware of the criticism voiced by interested parties about the final text. However, we should not let the perfect become the enemy of the good."

Assurances were provided that the text had "gone through legal scrutiny and will ensure the uniform application without undermining the rule of the Court of Justice."

Commissioner Barnier described the measure as "landmark in the building of Europe".

Today's media release from the European Parliament stated that "a new regime will cut the cost of an EU patent by up to 80%, making it more competitive vis-à-vis the US and Japan" and that "MEPs cut costs for small firms and tailored the regime to their needs".   The release included the following claim from the Commission: 

"The new patent will be cheaper and more effective than current systems in protecting the inventions of individuals and firms. The new regime will provide automatic unitary patent protection in all 25 participating member states, cutting cuts costs for EU firms and hence boosting their competitiveness. When the new system is up to speed, an EU patent may cost just €4,725, compared to an average of €36,000 needed today".